State of Iowa v. Alishia Sue Dawn Dewbre

IN THE COURT OF APPEALS OF IOWA

No. 21-1150
Filed October 19, 2022

STATE OF IOWA,
Plaintiff-Appellee,

vs.

ALISHIA SUE DAWN DEWBRE,
Defendant-Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Emmet County, Ann M. Gales,

District Associate Judge.

Alishia Dewbre appeals her conviction for operating while intoxicated,

asserting that the results of a blood test for alcohol concentration should have been

suppressed. AFFIRMED.

Jack Bjornstad of Jack Bjornstad Law Office, Spirit Lake, for appellant.

Thomas J. Miller, Attorney General, and Timothy M. Hau and Louis Sloven,

Assistant Attorneys General, for appellee.

Considered by Bower, C.J., and Tabor, Greer, Schumacher, Ahlers,

Badding, and Chicchelly, JJ.
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AHLERS, Judge.

Alishia Dewbre appeals following her conviction for operating while

intoxicated (OWI). She contends the State violated her right against self-

incrimination under article I, section 9 of the Iowa Constitution by subjecting her to

a blood draw obtained via a search warrant and the district court should have

granted her motion to suppress the blood test results.

I. Background Facts and Prior Proceedings

In the early-morning hours of a Friday, a law enforcement officer observed

a truck weave back and forth repeatedly and cross the center line of a state

highway. The officer pulled the truck over and identified Dewbre as the driver.

Dewbre emitted an odor of alcoholic beverage, her eyes were watery and

bloodshot, and she admitted to drinking. After Dewbre refused field sobriety

testing and a preliminary breath test, the officer arrested Dewbre for OWI.

The arresting officer did not invoke implied consent. See Iowa Code

§ 321J.6 (2019) (establishing a procedure to obtain blood, breath, or urine

specimens from vehicle operators suspected of operating under the influence of

drugs or alcohol). Instead, the officer sought and obtained a search warrant for a

“blood, urine, and/or breath specimen from” Dewbre. Law enforcement transferred

Dewbre to a hospital where a lab technician took a blood specimen from her. The

specimen was tested and revealed that Dewbre had a blood alcohol level of 0.126.

The State charged Dewbre with OWI.

Dewbre filed a motion to suppress “any and all evidence seized as a result

of the search warrant” because she claimed taking the blood specimen violated

her rights under the Iowa Constitution. Following a suppression hearing and
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briefing from the parties, the court denied the motion to suppress. Dewbre

stipulated to a trial on the minutes, and the court found her guilty of OWI.

Dewbre appeals and requests we reverse the district court’s ruling on the

motion to suppress.

II. Scope and Standard of Review

Because Dewbre challenges the suppression ruling on constitutional

grounds, our review is de novo. State v. Hunt, 974 N.W.2d 493, 496 (Iowa 2022).

“We review the entire record to independently evaluate the totality of the

circumstances and examine each case ‘in light of its unique circumstances.’” State

v. Hauge, 973 N.W.2d 453, 458 (Iowa 2022) (quoting State v. Brown, 930 N.W.2d

840, 844 (Iowa 2019)).

III. Discussion

Dewbre remains faithful to the argument she raised at the suppression

hearing—she claims article I, section 9 of the Iowa Constitution and State v.

Height, 91 N.W. 935 (Iowa 1902), prohibit compelled physical examinations or

procedures that would incriminate a defendant. She reasons that taking her blood

specimen, even with a warrant, violated her state constitutional right against self-

incrimination.

Although the Iowa Constitution does not explicitly provide a right against

self-incrimination, our supreme court has found such a right implicitly exists via the

due process clause in article I, section 9 of the Iowa Constitution. See State v.

Gibbs, 941 N.W.2d 888, 894 (Iowa 2020). Height, an opinion nearly one hundred

and twenty years old, discussed this right and its bounds. 91 N.W. at 936–38.
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In Height, the defendant was accused of committing a sex act on a ten-year-

old child who “was found to be affected with venereal disease.” Id. at 935. While

the defendant was jailed and awaiting trial, physicians examined the defendant’s

genitals at the direction of the prosecutor and over the defendant’s objections. Id.

at 936. The physicians discovered the defendant was afflicted with the same

disease as the child. Id. at 935. That evidence was presented to the jury. Id. The

supreme court completed a detailed discussion of article I, section 9 of the Iowa

Constitution before ultimately determining the evidence should have been

excluded under article I, section 8 of the Iowa Constitution because the search was

conducted without a warrant. Id. at 936–40.

The supreme court referenced Height a few years later in Wragg v. Griffin,

when it stated, “Even when charged with the gravest of crimes, [a defendant]

cannot be compelled to give evidence against himself, nor can the [S]tate compel

him to submit to a medical or surgical examination, the result of which may tend to

convict him of a public offense.” 170 N.W. 400, 403 (Iowa 1919) (citing Height, 91

N.W. at 935). However, Wragg did not address whether the petitioner’s right

against self-incrimination, under the state or federal constitution, was violated

when he was detained for testing to determine whether he had a sexually

transmitted infection. In fact, neither article I, section 9 of the Iowa Constitution

nor the Fifth Amendment to the United States Constitution are referenced or

discussed anywhere in Wragg. Instead, Wragg answered the question,

May the local board of health of the city of Des Moines, upon
suspicion that the petitioner is afflicted with a venereal disease, or
has been exposed to such contagion, lawfully order him under arrest
and subject him by force to an examination of his person and compel
him against his will to permit a quantity of blood to be extracted from
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his veins, and then be held in continued durance until the blood has
been sent to an expert in a distant city and by test thereof it is
determined whether such petitioner is or is not in fact so diseased? [1]

Id. at 401. So Wragg provides scant support for Dewbre’s self-incrimination

argument. Still, Dewbre argues neither Height nor Wragg have been explicitly or

implicitly overruled, so we must follow them to conclude the Iowa Constitution

prohibits compelled medical examinations of a defendant for the purposes of

collecting evidence to use against the defendant.

The State strongly and persuasively pushes back on Dewbre’s claim. At

the outset, we agree with the State’s characterization of the portions of Height and

Wragg that Dewbre relies upon as dicta rather than as substantive holdings. That

reconciliation helps explain why neither was expressly overruled by our supreme

court in the years following. Moreover, in Aguilar Olvera v. State, No. 18-0930,

2019 WL 3943995, at *4–5 (Iowa Ct. App. Aug. 21, 2019), we concluded Height

and its analysis of the examination of the defendant without a warrant were no

longer applicable given developments in our laws in the years since Height. So

we look elsewhere for guidance.

In State v. Johnson, our supreme court addressed whether a defendant was

entitled to a separate determination by a separate jury as to whether a blood

specimen taken from him was obtained through coercion and trickery, making it

involuntarily obtained and impermissible to use to prosecute him for OWI. 135

N.W.2d 518, 524 (Iowa 1965). Johnson determined such process was not

1Wragg answered this question in the negative explaining, “before the courts will
uphold such an exercise of power, it must be authorized by a clear and definite
expression of the legislative will [that] we do not have.” 170 N.W. at 403.
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necessary. 135 N.W.2d at 524. It found the defendant had freely and voluntarily

given his consent to the taking of his blood specimen. Id. at 525. The court went

on to note “the evidence relating to the analysis of appellant’s blood sample taken

and the explanatory testimony of the analyst were admissible, and that their

admission did not violate appellant’s privilege against self-incrimination under

either the federal or state constitutions.” Id. This pronouncement seems fatal to

Dewbre’s claim. Nonetheless, we go on to highlight the pertinent distinction in

incriminatory evidence.

We make a fundamental distinction between testimonial and non-

testimonial evidence from a defendant. In State v. Sefcheck, the defendant

claimed his Miranda rights were violated, a claim rooted in the Fifth Amendment

right against self-incrimination, by the admission of samples of his handwriting.

157 N.W.2d 128, 135 (Iowa 1968). Our supreme court rejected the defendant’s

Fifth Amendment claim and explained, “The constitutional safeguards upon which

the defendant relies do not extend to non-testimonial evidence.” Id. It went on to

clarify that

[t]he privilege against self-incrimination under both federal and state
rules, is limited to evidence by [c]ommunication in whatever form that
communication might take. It does not protect a defendant, by the
taking of blood or other bodily fluid, by the use of fingerprints, or by
the showing of some physical trait or characteristic, from becoming
the source of real or physical evidence against himself.

Id. (emphasis added). That explanation would seem to resolve the case before

us—Dewbre’s claim relates to non-testimonial evidence (the blood specimen), so

Sefcheck seemingly defeats her claim under article I, section 9. But Dewbre

argues we cannot put stock in Sefcheck because we cannot assume its reference
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to the “taking of blood or bodily fluid” includes compelled blood draws. Instead,

she contends we should infer that the reference extends only to voluntary blood

draws.

Dewbre’s argument misses the mark for two reasons. First, Sefcheck

makes a simple distinction between testimonial and non-testimonial evidence and

concludes federal and state prohibitions against self-incrimination only apply to

testimonial evidence. See id. Second, we see nothing in Sefcheck to infer a

distinction between how we treat compelled and non-compelled non-testimonial

evidence. See id. So, when determining if the state and federal prohibitions

against compelled self-incrimination are triggered, the real inquiry is whether the

evidence in question is testimonial or non-testimonial, not whether the non-

testimonial evidence was compelled or not compelled.

Dewbre’s argument also ignores the availability of a warrant to aid in the

investigation of an OWI offense. Dewbre suggests that obtaining a warrant for a

blood draw was unreasonable because the officer could have invoked implied-

consent procedures instead. This suggestion is negated by statute and case law.

Iowa Code section 321J.18 makes it clear that implied-consent procedures are not

the exclusive means for testing, as it notes “[t]his chapter does not limit the

introduction of any competent evidence bearing on the question of whether a

person was under the influence of an alcoholic beverage.” And State v. Oakley

held that Iowa Code chapter 321J does not preempt the general search warrant

provisions of chapter 808. 469 N.W.2d 681, 682–83 (Iowa 1991). By obtaining a

warrant, the officer provided more safeguards to Dewbre than if the officer had

invoked implied consent. Implied consent is invoked based on the judgment made
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by the officer. See Iowa Code § 321J.6(1) (permitting invocation of implied-

consent testing procedures by “a peace officer having reasonable grounds to

believe that the person was operating a motor vehicle” while intoxicated). In

contrast, a warrant is issued based on probable cause findings of a neutral and

detached third party—the judicial officer issuing the warrant. See Johnson v.

United States, 333 U.S. 10, 13–14 (1948) (noting that the protections of the warrant

requirement consist of requiring the inferences justifying a search should “be

drawn by a neutral and detached magistrate instead of being judged by the officer

engaged in the often competitive enterprise of ferreting out crime”). By seeking a

warrant, the officer provided Dewbre with more safeguards than if the officer had

relied on implied-consent procedures. We find Dewbre’s claim unpersuasive that

her due process rights protecting her against self-incrimination were violated by

providing her with more process and more judicial oversight than Iowa Code

chapter 321J requires.

Dewbre makes one last attempt to distinguish Sefcheck. She argues it is

implausible that the supreme court intended its opinion to overrule Height and

Wragg when the claim before the court was rooted in the federal constitution and

not article I, section 9 of the Iowa Constitution. But as previously noted, Height’s

references to article I, section 9 were dicta and Wragg does not mention article I,

section 9. Thus, neither case involved substantive holdings to be overruled. So,

even though Sefcheck did not expressly overrule either case, we do not view

Sefcheck as accidentally dipping its toe where it did not intend to go. Rather

Sefcheck provided clarity as to the bounds of the right against self-incrimination in

Iowa, which the court already referenced in Johnson, 135 N.W.2d at 525.
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Dewbre also argues we should interpret the Iowa Constitution as providing

individuals with greater protection than the federal constitution. She points to

Iowa’s history of interpreting its constitution as being more protective than the

federal constitution. See State v. Baldon, 829 N.W.2d 785, 820–21 (Iowa 2013)

(Appel, J., specially concurring) (discussing instances where our supreme court

interpreted the Iowa Constitution in a different manner than the United States

Constitution). She seems to ask us to interpret article I, section 9 to prohibit both

compelled testimonial and non-testimonial evidence from a defendant. Yet doing

so would require us to run afoul of Sefcheck, which we cannot overturn. State v.

Hastings, 466 N.W.2d 697, 700 (Iowa Ct. App. 1990) (“We are not at liberty to

overturn Iowa Supreme Court precedent.”).

To the extent the language from Sefcheck is also dicta, we decline to stray

from its reasoning when interpreting article I, section 9. We are cognizant that the

Iowa Constitution may be interpreted in a different manner than the federal

constitution. See Nguyen v. State, 878 N.W.2d 774, 755 (Iowa 2016). “However,

‘our independent authority to construe the Iowa Constitution does not mean that

we generally refuse to follow the United States Supreme Court decisions.’” Id.

(citation omitted). We decline the invitation to interpret the implicit right against

self-incrimination found in article I, section 9 of the Iowa Constitution as providing

greater protection against self-incrimination than the explicit right found in the Fifth

Amendment.

Because we treat article I, section 9 and Fifth Amendment claims alike, we

may look to Fifth Amendment cases to determine the bounds of what compelled

evidence is prohibited under article I, section 9. In doing so, it is apparent that
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compelled non-testimonial evidence, like Dewbre’s blood draw, passes

constitutional muster. In Schmerber v. California, the Supreme Court held that the

Fifth Amendment right against self-incrimination “protects an accused only from

being compelled to testify against himself, or otherwise provide the State with

evidence of a testimonial or communicative nature, and that the withdrawal of

blood and use of the analysis [of the blood] d[oes] not involve compulsion to these

ends.” 384 U.S. 757, 761 (1966). It went on to explain,

Not even a shadow of testimonial compulsion upon or enforced
communication by the accused was involved either in the extraction
or in the chemical analysis [of the accused’s blood]. . . . Since the
blood test evidence, although an incriminating product of
compulsion, was neither [the accused]’s testimony nor evidence
relating to some communicative act or writing by the petitioner, it was
not inadmissible on privilege grounds.

Id. at 765. Accordingly, Dewbre’s motion to suppress was correctly denied.

IV. Conclusion

The due process clause of article I, section 9 of the Iowa Constitution

provides individuals with a right against self-incrimination. However, that right only

prohibits compelled testimonial evidence from a defendant. Obtaining and testing

a sample of Dewbre’s blood via a search warrant did not violate her right against

self-incrimination.

AFFIRMED.